Appeals court overturns murder conviction over drug charge

Peter Hermann, The Baltimore Sun

The state's second-highest court has overturned a murder conviction for a man who police say participated in a drug deal that ended in gunfire, which killed a Baltimore County grandmother hit by a stray bullet.

Donald S. Kohler did not shoot Shirley Worcester, 58, outside her Middle River home in January 2009. Police said Kohler had cheated a dealer out of four pounds of marijuana by handing over fake money and was running away when the dealer shooting at him hit the victim instead.

Prosecutors argued that Kohler was just as culpable for Worcester's death as the person who pulled the trigger, because they said he participated in a conspiracy that made everyone involved responsible for the outcome.

A jury agreed and convicted Kohler, a Joppatowne resident, of second-degree murder, conspiracy to distribute marijuana and possession of marijuana with intent to distribute. A judge sentenced the now 31-year-old to 35 years in prison.

But the Maryland Court of Special Appeals ruled last week that Kohler did not distribute marijuana because he was the receiver, not the seller. "It is clear that the General Assembly intended the prohibition against distribution to encompass only those who deliver [drugs], not those to whom [drugs are] delivered," the court said.

The ruling, filed Thursday, makes a legal distinction between two similar felonies — distribution of drugs and possession of drugs with the intent to distribute. The former, the court said, does not apply to Kohler. The court said the more appropriate charge was the latter, since it does not require proof of an actual exchange.

"We acknowledge that possession with intent to distribute and distribution might fairly be viewed as two sides of the same coin," the court ruled. "As this case demonstrates, however, there is a substantive difference between the two crimes when the state attempts to use them as the predicate for felony murder."

The judges also said Kohler was not part of a conspiracy, which is required to hold him accountable for a shooting that someone else committed.

"There appears to be no meeting of the minds to engage in a sale of drugs because Kohler was acting in bad faith from the outset," the court ruled. "His pretended offer of the purchase price was nothing but a charade to facilitate his theft of the marijuana. Kohler cannot have conspired to purchase marijuana when he obviously never intended to purchase it."

Baltimore County Assistant State's Attorney John Cox used the distribution charge, not the possession with intent charge, to convince the jury that Kohler was involved in the conspiracy. He acknowledged during the trial that he was making the intended target of the shooting "a participant in the crime."

The prosecutor said the shooting would not have happened "but for [Kohler's] desire to allegedly purchase the marijuana."

The man who fired the shot that killed Worcester, Warren J. Yates, 28, was convicted of murder and other charges and sentenced to 95 years in prison. A third person, William M. Griffin, 24, pleaded guilty to drug distribution and was sentenced to five years.

Kohler's conviction for possession of drugs with intent to distribute and five-year sentence on that charge stands. Prosecutors said Kohler will be released soon; his sentence started when he was arrested shortly after the Jan. 7, 2009, shooting.

Attorney Pete Rose, who is with the appellate division of the Public Defender's Office and argued the case, said "we are obviously pleaded with the decision." He declined to comment further.

The three Court of Special Appeals judges unanimously said that Kohler cannot be retried in the case. The Maryland attorney general's office can appeal the decision to the state's highest court; a spokesman said a decision has not been made.

Police and prosecutors said that Kohler and his friends had wanted to steal marijuana and brokered a deal using a roll of money purported to be $4,400. In fact, it was a bundle of fake money with a real $100 bill on the outside. Police said Yates quickly realized the scam and chased Kohler down Whitethorn Way, firing a gun at the man running with a trash bag full of drugs.

Worcester was outside her house cleaning up after removing Christmas decorations. One bullet hit a tree on the property where she had lived for 19 years. Another bullet hit Worcester in the chest, and she collapsed on her driveway as she was talking with a relative who had just returned from church.

Cox, the prosecutor who handled the case, said in an interview that he has talked with Worcester's husband about the appeals court decision. "Mr. Worcester is a good man," Cox said. "His greatest concern was the person who killed his wife, and he got 95 years."

The assistant state's attorney said that using the drug distribution charge in Kohler's case "was a unique theory." But he said "it wasn't the possession with intent that led to the killing … the death occurred as a result of and during the course of drug distribution."